Hello and thank you for your question. I will be very pleased to assist you. I'm a practicing lawyer in England with over 10 years experience.
May I ask who have been appointed executors and trustees of your husbands will please?
From what you say you have been granted a life interest trust under your husbands will in respect of your husbands half share in the property with the right to live and sell the same etc. Is that correct>
My solicitors are executors of my late husbands will. From what I understand from the will, yes I was given half share in the property with the right to live and sell until I pass away. But the solicitor is stating I have breached that right by purchasing another prperty withoutusing the funds from this existing property.
Thank you. If this is a full life interest as opposed to a right of occupation then this arrangement should not cause a problem. If it is only a right of occupation then the steps you have taken may cause an issue though there could be a question of negligence on the part of your solicitors if they failed to properly advise you on the position.
In order for me to determine the type of trust or rights granted do you by any chance have the wording of the clauses from your husbands will which provide the rights regarding the property (leaving out names). I should only need the first few provisions from this clause
I am struggling to get a copy of my late husbands will from the solicitor. I have told them I require a copy by 4pm today or I shall contact the ombundsman as they are legally obligedto give me a copy. Since the appointment the solicitor has refused to return my calls o to see me. I have been trying for two days to obtain a copy of the will. As soon as I am able to get one I will email the wording of the clause.
Thanks. You may wish to speak to the senior or managing partner in the firm if you are having problems with the solicitor. Behaviour seems very odd. You can also obtain a copy of the will from the probate registry for a fee of circa £5.
The solicitor is one of the partners! If I donot get a copy this afternoon I will obtain a copy from where you have advised. I donot know what is going on. I donot feel they are acting ina very professional manner.
The firm is required to have a complaints partner to complain to if you are not satisifed regardelss of whether you are dealing with a partner already or not.
I have a copy. Clause a-My wife mrs susan elliff may live in the house an d use it as her principal residence and have use of the effects in connection with it for so long as she wishes without any charge. Clause b-Until the occupant has in the opinion of my trustees ceased to be entitled under (a) to use the house as her principal residence neither it nor the effects shall be sold without her consent but she shall pay all rates and outgoings and keep it in good repair and insured to the satisfaction of my trustees. Clause c - At the request of the occupant my trustees may sell the house and buy another one to which the provisions of this clause shall then apply. Clause d - Any surplus arising from the sale and purchase arising by virtue of the exercise of the power given in sub clause c of this will shall be held by my trustees upon trust for my said wife absolutely and beneficially. Clause e - When this trust ends the house or the net proceeds therefrom shall be held by my trustees upon trust for such my children namely ......... and ....... as shall survive me and if both then in equal shares absolutely and beneficially PROVIDED that if any child of mine shall predecease me and shall leave a child or children who shall be living at the death of the survivor of myself and his her or their deceased parent and shall have attained or attain the age of 21 then such child shall take the share or interest in the house which is his her or their deceased parent would have taken if he or she had survived me or attained the age of 18 years.
Thanks. Just reviewing the above...
Thanks. Did you ask that the trustees sell your existing house and purchase another as per clause c?
From what you say you have made the children co-owners of your new house? If so have you put in place any form of declaration of trust or agreed precisely what value they own in the property?
Is the same firm of solicitors acting for you personally and for your husbands estate as executor?
Finally are the children who are deemed to be the ultimate beneficiaries of the trust happy with your proposal or are they pushing for money?
I went into the solicitors initially for advice as to regards XXXXX XXXXX and my position. I asked if I could purchase another property of higher value and sell the house I was currently in. I asked if I did that would the children automatically move with me, as such, to the new property. I was advised by the trustee of my late husbands will that I could purchase the property and sell my property. He said I had to let him know when things were moving and he would notify the children. I then commenced to use the very same solicitors for the convenancing. Upon completion of the sale of the property I had bought, the completion date on the sale of my house is 4 weeks later, 30th May. This is where the solicitor says the problem lies. He says I have broken the trust with not completing on the same day, and also not using the funds from this property for the purchase of my new property. But the money from this property is going to pay back some money I borrowd from my mum to purchase the new property as my sale didnt go through in time, so in theory the money from this property is funding the new property. What I dont understand I was advised it was ok to go ahead with the purchase and now it looks like I am going to lose out. Anyone with any common sense would not done this if they were advised correctly. I can least afford at 50 year old to let his children have their share now, I will have to take out a mortgage. I dont understand why the solicitor did not just notify the children of move and that be it. I have not defrauded them, I have upgraded to a more expensive property so in the long run they will benefit. The children are meeting with the solicitor on Monday to be toldof the situation, and knowing my late husbands daughter she will want the money if there is a chance she can get it. I feel I have been totally mislead by the soliciitor and unprotected I am sure my late husband would not want this especially when we put everything into this home jointly and fairly, and since he passed away I have spent over 30,000 on it.The solicitor who is dealing with was the executor of my late husbands will and states he is impartial.
Thanks. From what I understand from what you say above, the same firm of solicitors is acting as executors and trustees of your husbands will as have acted for you in the conveyancing.
The will clause is very odd. On the face of it, the clause provides you with a right of occupation in the property you owned jointly with your husband rather than a full life interest. The distinction between the two is that a full life interest gives you a right to the income and benefit from the value of the trust fund in whatever form it takes be it an investment in a property or money in the bank and so on. A right of occupation by contrast is merely that, right to occupy a specific property which right can be extended to other properties and further rights included as is the case here.
however, what is very curious is the additional provision that you are given the difference between any new property you buy following the sale and purchase of your existing and new property. Such a provision is very odd in a right of occupation clause, and I would question in light of the same whether your husband intended a full life interest trust rather than a right of occupation however that is another matter.
the key issues here appear to be a) a question of interpretation of the will particularly in light of the circumstances you find yourself in b) a question of conflict of interest for the solicitor c) the quality of advice you have receied particulaly in light of the conflict of interest d) how you proceed.
to take each of these issues in turn:a) notwithstanding my view that the above will clause is oddly drafted it is open to interpretation. clause C of the right of occupation provisions provides that you may ask the trustees to purchase a new property for your and then clause d provides that you are entitled to keep any difference of the net proceeds between the property that is sold and the property that is bought. there is no condition that the new property that is bought must be completed simultaneously or after the property that is sold and accordingly, there is no reason why you cannot make a loan to the trustees to enable the new property to be purchased whereby they then repay the loan to you using the proceeds of sale from your old property to conform with the terms of the will trust. the solicitor trustee appears to have taken a different view but there is no evidence to suggest that his view is correct in particular because there is a clear implication from the will trust that your husband intended that your needs were to be regarded if not paramount then of significant importance.
b/c) the solicitors in acting both as executors and trustees of your husband's will and acting for you personally as a beneficiary have placed themselves in the position of conflict-of-interest country to the SRA's solicitors conduct code. in addition, there is at least? As to the quality of advice you have received as a beneficiary as the solicitor acting for you personally should in my view at the very least have sought confirmation from the trustees of your husband's will trust that the trustees would agree to the arrangement you have entered into. As above, it main fact be that the trustees have little option depending upon the interpretation of the will but this does not obviate the need to clarify this position with them prior to your committing to the deal. there would on this ground alone appear to be a basis for you to make a complaint and in particular question both the quality of advice received and questions regarding conflicts of interest for the solicitors firm and if necessary you can of course escalate this complaint to the legal ombudsman who has the power to award compensation
d) accordingly, it seems to me your first step may be to consider writing to the solicitors in the form of a complaint setting out your concerns namely that they would appear to be acting in a manner which is conflict-of-interest contrary to chapter 3 of the solicitors code of conduct and furthermore that the firm was fully aware of both your rights under the will and your proposals in terms of your property transaction and you feel that you have been very poorly advised and furthermore that the solicitor acting for you for your conveyancing failed to obtain clarity with the trustees as to their views on position with regards XXXXX XXXXX transaction and furthermore that you see no reason why the trustees cannot acquire the property and/or acquire the property subject to steps the conveyancing solicitor has already taken. accordingly you may consider asking the solicitors to treat your correspondence as a formal complaint and that you look forward to hearing from them with your proposals a copy of the complaints procedure by return and further give notice that you will consider reporting the matter to the solicitors regulation authority as a potential breach of the solicitors conduct code and/or escalating the matter to the legal ombudsman depending upon the content of their response
is there anything above I can clarify for you?
No you have been extremely helpful regarding the matter. Thankyou.